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January 21, 2011

Last call for submission of commentaries for FSR providing "Advice to the Commissioners"

As explained in this post a few weeks ago, the Federal Sentencing Reporter is devoting its April 2011 issue to publishing a series of short commentaries — ranging in length from a few paragraphs to a few pages — on federal sentencing topics in a form that provides “Advice for the U.S. Sentencing Commissioners.” I am pleased not only that we have received nearly a dozen recent submissions for this issue, but also to be able to report that we probably have the time and space for a few more pieces. But they need to come in ASAP.

As explained before, submissions should be sent electronically to sentencinglaw @ gmail.com with a clear indication of the author and the author’s professional affiliation. All judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, and any others with an informed interest in federal sentencing law and practice are encouraged to submit a commentary. But they need to be submitted soon in order to have a real chance for an on-time April publication.

US company, pressured by Italy, suspends production of lethal injection drug

As detailed in this new AP story, which is headlined "US drug maker discontinues key death penalty drug," a notable new corporate decision could have a great impact on future plans for lethal injection executions. Here are the basics:

The only U.S. manufacturer of a key lethal injection drug is discontinuing the drug's production because Italian authorities wanted a guarantee that it wouldn't be used to put inmates to death — a decision that could disrupt executions in states already struggling with a shortage of the drug.

Hospira Inc., of Lake Forest, Ill., said Friday that it had decided to switch manufacture of the anesthetic from its North Carolina plant to a Hospira plant in Liscate, outside of Milan, in Italy. But Italian authorities insisted the company control the product's distribution all the way to the end user to guarantee it wouldn't be used in executions.

After discussions with Italian authorities, with Hospira wholesalers and within the corporation, Hospira decided it couldn't make that promise. "Based on this understanding, we cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment," company spokesman Dan Rosenberg said. "Exposing our employees or facilities to liability is not a risk we are prepared to take."

Sodium thiopental is already in short supply, and any batches Hospira had manufactured were set to expire in March. That means the decision to halt production could in turn disrupt or delay executions across the U.S.... The company's Italian plant was the only viable facility where Hospira could manufacture sodium thiopental, Rosenberg said.

The current shortage of the drug had disrupted executions in Arizona, California, Kentucky, Ohio — which nearly ran out last spring — and Oklahoma.

In the fall, states including Arizona, Arkansas, California and Tennessee turned to a British manufactured source of sodium thiopental. But that supply dried up after the British government in November banned its export for use in executions.

Oklahoma went a different route, switching to pentobarbital, an anesthetic commonly used to put cats and dogs to sleep. The state has conducted two executions with the new drug.

As regular readers may recall, aided by a helpful lawyer in NYC litigating a Fair Sentencing Act issue for a defendant awaiting initial sentencing in a multi-defendant case, I had the opportunity and honor to serve as an amicus in an SDNY case dealing with the issue of applying the FSA's provisions to not-yet-sentenced defendants. Yesterday, US District Judge Kenneth Karas issued a 58-page opinion in US v. Santana, No. 09-CR-1022 (S.D.N.Y. Jan. 20, 2011) (available for download below), which concludes this way:

The Court recognizes that over the course of the last two decades there has been growing belief among practitioners, courts, commentators, and many others that the 100-to-1 ratio that Congress hastily adopted in 1986 was based on insufficient facts and has resulted in severe sentences that have been disproportionately imposed on certain groups of individuals. By enacting the FSA, Congress appears to have responded, at least in part, to this consensus. The Court also appreciates the desire of many, including the district judges who must impose mandatory sentences, that there be no more sentences based on the 100-to-1 ratio, and that this sentiment may explain the view that the FSA should govern all sentences going forward.... Indeed, at oral argument, counsel for Defendants, expressing similar sentiment, urged the Court to find some “play in the authority” to apply the FSA to this case. (December 8, 2010 Oral Argument Tr. 51.) But, here, in light of the Saving Statute, “we are not dealing with optional rules of statutory construction.” Holiday, 683 A.2d at 79. It is a law that like any other must be applied as written. And while the goal of those who wish to immediately abandon the old sentencing regime in favor of that adopted in the FSA is understandable, it is a suggestion “addressed to the wrong governmental branch.” Marrero, 417 U.S. at 664. As Justice Brennan has explained: “Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.” Id.

Here, Congress easily could have made clear its intent, if it wanted to, that the FSA apply to all individuals who had not yet been sentenced.... But here, Congress adopted no such clear provision.

Of course, it remains a possibility that Congress still could enact legislation expressly applying the FSA to all those not sentenced as of August 3, 2010. Or, it is always possible that the Executive Branch, as Senators Durbin and Leahy have suggested, could exercise its discretion, through its charging decisions, to avoid continued imposition of sentences under the old law. But, in the end, it is not the obligation or province of the courts to fill in the gaps left by the other branches of government. Therefore, for the reasons stated herein, the pending motions to apply the FSA to this case are DENIED.

As my amicus filings in the Santana case reveal, I do not think this is the right result. But I remain grateful to have had a chance to participate in this litigation, and I am impressed that a busy district court judge found the time and energy to write at such great length on this important (but transitory) sentencing issue.

"A killer deal: Be a star witness, escape execution"

The title of this post is the headline of this interesting article from the Washinton Times. Here is how it gets started:

Not long after Timothy Heaphy was nominated to be U.S. attorney for the Western District of Virginia, he filled out a routine Senate questionnaire listing the 10 most-significant cases of his career as a prosecutor and defense lawyer.

Along with high-profile cases such as representing former Olympic gold-medalist sprinter Tim Montgomery and prosecuting Sidney Jackson, the so-called "Capitol Hill slasher," Mr. Heaphy mentioned a name few if anyone in the U.S. Senate likely knew: Oscar Veal.

But to Mr. Heaphy, a former assistant U.S. attorney in Washington, and to a handful of investigators and prosecutors, Veal was largely responsible for dismantling the most violent drug organization that Washington has ever seen.

Veal, 39, shot and killed seven people. A contract killer for a large drug ring and murder-for-hire operation a decade ago, he cooperated with prosecutors and became a star witness for the government. Kevin Gray, the lead defendant in one case in which Veal testified, alone was convicted in Washington of taking part in a record 19 murders.

But there is a price to be paid for such testimony. Veal could have faced the death penalty. Instead, he has completed about half of a 25-year prison term — less than four years for each of the execution-style murders he committed. At his 2005 sentencing, which has not been previously reported, a relative of one victim said she will pray until her dying breath that Veal never sees the streets again. And attorneys for the men he testified against portrayed him as a snitch willing to lie in court to save himself.

Veal, in an undisclosed prison, declined to comment through his attorney. But the story of his crimes and cooperation are revealed in thousands of pages of recently obtained transcripts and law enforcement and court documents. The records shed light on little-known deals prosecutors say they must make to put away violent criminals, even if it means that some killers like Veal who cooperate will be free again.

Victims sue in California to try to undo controversial commutation by former Gov Schwarzenegger

The notable controversy in California over a last-day commutation by the last governor has taken an interesing legal turn, which is detailed in this Los Angeles Times piece headlined "Family sues Schwarzenegger over commutation of Nuñez's sentence; The parents of Luis Santos, the 22-year-old who was stabbed to death in a confrontation with the son of former Assembly Speaker Fabian Nuñez, claim the ex-governor violated California's Victims Bill of Rights." Here are the details:

The parents of Luis Santos, a 22-year-old college student killed in a confrontation with the son of former Assembly Speaker Fabian Nuñez, filed suit against former Gov. Arnold Schwarzenegger in Sacramento on Thursday, claiming that his decision to reduce the younger Nuñez's sentence violated California's Victims Bill of Rights.

During his last hours in office, Schwarzenegger cut Esteban Nuñez's 16-year sentence for voluntary manslaughter to seven years, without notifying the Santos family. Schwarzenegger noted in his commutation order that Nuñez, although involved in the fight that ended in Santos' death, did not inflict the fatal knife wound.

Under the Victims' Bill of Rights, which was added to the state Constitution following a 2008 ballot measure, victims have a right to be heard "upon request" in any proceeding involving a "post-conviction release decision." One of the Santos attorneys, Nina Salarno Ashford, said the family members didn't have a chance to request a hearing because they didn't know Schwarzenegger was going to take action. The former governor had a duty to inform the family, Ashford said....

Days after releasing the commutation order, Schwarzenegger sent the Santos family a letter apologizing for not informing them of his decision. Fred Santos, the victim's father, accused Schwarzenegger of reducing the sentence as a favor to Fabian Nuñez, who as Assembly Speaker was often an ally of the governor's.

The suit asks the court to reinstate Nuñez's original 16-year sentence, which a San Diego judge imposed after a plea bargain that reduced the original charge of murder to the lesser charge of voluntary manslaughter.

January 20, 2011

Notable defense of parole focused on prosecutorial discretion

Writing in The Atlantic, Wendy Kaminar has this interesting new commentary, headlined "Why Granting Parole Helps Us Stay Tough on Crime," which stresses the too-often ignored issue of prosecutorial discretion. Here are excerpts:

Massachusetts governor Deval Patrick recently secured the resignation of the executive director and five members of the seven member Massachusetts parole board, including its chair, after paroled career criminal Domenic Cinelli killed veteran police officer Jack Maguire during a botched robbery attempt in late December 2010. Not surprisingly the murder of a police officer by a parolee sparked widespread outrage and demands for drastic parole reforms, including an immediate suspension of parole hearings. After a subsequent inquiry found serious mistakes in the conduct of Cinelli's hearing and a serious failure of supervision when he was released, Patrick's shake-up of the agency, which was met with the surprised approval of his conservative critics and the dismay of liberal criminal justice advocates, seemed inevitable. When you hold a high-stakes, high-profile job, you should probably not expect political forgiveness for a series of fatal or near fatal mistakes -- unless you're a prosecutor.

Prosecutorial misconduct is a familiar if not common occurrence that results in the imprisonment of innocent people, the failure even to arrest the guilty, or lenient sentences for offenders when prosecutors are caught engaging in misconduct and enter into plea bargains to avoid exposure.... [In too many] cases, including those involving lengthy, wrongful imprisonments, prosecutorial misconduct is often tolerated, if not trivialized, as its persistence shows. The wrongful imprisonment of innocent people and ruination of innocent lives resulting from intentional government misconduct simply does not arouse the outrage and demands for reform that follow a fateful parole decision, resulting from unintentional mistakes.

In fact, the call for harsher penal laws sparked by a mistaken grant of parole can exacerbate the problem of misconduct by increasing the generally unaccountable, discretionary power of prosecutors through mandatory sentencing schemes, which (as I've noted here) effectively consolidate charging and sentencing authority in the prosecutor's office. In Massachusetts, police and some legislators are pressing for passage of an emotionally charged law (named for murder victim, Melissa Gosule) that would impose mandatory maximum penalties on many third time felony offenders, eliminating opportunities for parole....

If only people were consistent in their mistrust of government: Parole board members are not to be trusted with discretion in granting parole, and judges are not to be trusted with discretion in sentencing convicted defendants; but prosecutors are invariably trusted with significantly increased discretion, despite their track records of abusing it. The illogic of popular, putatively tough anti-crime strategies has long frustrated death penalty opponents and other criminal justice reformers: People who tend not to trust the government with its civil, regulatory power, notably over business or health care, will trust it enthusiastically with awesome, inadequately checked prosecutorial power. They trust that it will prosecute and occasionally execute other people, (only very bad and guilty people) with consistent accuracy and fairness, despite all evidence to the contrary.

"Inside-Trading Convicts Avoid Prison Term in 44% of New York Court Cases"

The title of this post is the headline of this notable lengthy new article from Bloomberg News. Here is how it starts, along with some other stats from the piece:

Almost half of the 43 defendants who were sentenced in Manhattan federal court in the past eight years for insider trading avoided a prison term, with many never seeing the inside of a jail cell because they cooperated with prosecutors.

Nineteen who were sentenced since 2003, or 44 percent, weren’t incarcerated, an analysis of court cases by Bloomberg showed. Of the remainder, the average defendant got a prison term of 18.4 months. The greater the profit made on illegal trades, the longer the sentence. The longest term was 10 years. Danielle Chiesi, who pleaded guilty yesterday for her role in the Galleon Group LLC hedge fund insider-trading scandal, faces between 37 and 46 months in prison.

Since 2009, U.S. Attorney Preet Bharara in Manhattan has stepped up insider-trading prosecutions, charging more than 30 people in three overlapping rings. Of the three defendants sentenced so far in the Galleon ring, the average sentence has been 17 months. The nationwide investigation has implicated hedge funds, technology companies and so-called expert- networking firms....

The average sentence in 7,617 fraud cases in fiscal 2009 was 21.8 months, according to the U.S. Sentencing Commission, which establishes the guidelines. Of those convictions, 94.9 percent were the result of guilty pleas and 5.1 percent came at a trial.

In non-insider trading cases that year, judges in Manhattan federal court sentenced Bernard Madoff to 150 years for masterminding the largest Ponzi scheme ever, former KPMG LLP senior manager John Larson got 10 years for selling tax shelters to wealthy clients, and law firm founder Marc Dreier received a 20-year term for cheating hedge funds out of more than $400 million.

A review of government statements issued since 2003 by the Manhattan U.S. Attorney’s Office in cases in which the chief crime was insider trading showed that many sentences included probation or home confinement. Defendants typically were ordered to pay fines and restitution....

Twenty-eight of the 43 sentences reviewed by Bloomberg occurred in 2007 or later, when prosecutors stepped up their scrutiny of insider trading. In those cases, the average sentence was 17.2 months behind bars.

Notable new letter to AG Eric Holder concerning application of the FSA

This morning I received a copy of a letter that the Leadership Conference on Civil and Human Rights sent to Attorney General Eric Holder urging him to issue guidance instructing all federal prosecutors to apply the modified mandatory minimums in the new Fair Sentencing Act of 2010 to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment. The letter can be downloaded below, and here is an excerpt:

The passage of the FSA was a watershed moment in the move toward fairness in criminal sentencing and in the effort to correct a long standing wrong. Your leadership and support for the FSA were not only crucial to its passage, but also conveyed the need for immediate action. As you noted last year when testifying before the Senate, “the stakes are simply too high to let reform in this area wait any longer.” We agree....

All of this would lead us to think that the Justice Department would work with some urgency to prosecute crack offenders along the new guidelines consistent with the remedial purpose of the Act. But to our dismay, Assistant U.S. Attorney Michael J. Conley recently argued in court that it was the Justice Department‟s policy, and not simply a matter of prosecutorial discretion, to apply the old mandatory minimums to all future prosecutions and sentencing based on pre-August 3, 2010, conduct.... As Attorney General, you are well within the bounds of your authority to issue such guidance since there is ample precedence for producing various memoranda addressing Department policies with respect to charging, case disposition, and sentencing.... The recent passage of the FSA emphatically reaffirms Congress' intention that crack defendants are entitled to fair treatment. It makes no sense to apply punishment differentially for defendants whose conduct occurred a few days apart.

For these reasons, we call upon you to issue new guidance to all Justice Department prosecutors that closely follows the Congressional intent behind the Fair Sentencing Act of 2010 found in the legislative history surrounding its passage. Such guidance necessarily entails seeking sentences consistent with the Act‟s reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place.

January 19, 2011

"Death and Dixie: How the Courthouse Confederate Flag Influences Capital Cases in Louisiana"

The title of this post is the title of this interesting piece available via SSRN authored by two capital lawyers in Louisiana. Here is the abstract:

This article explores the constitutional problems associated with flying the Confederate flag at a death penalty trial in the South. Specifically, the Confederate flag at Caddo Parish Courthouse, in Shreveport, Louisiana, plays a toxic role in the administration of the death penalty in Shreveport. Post-Furman, Caddo Parish juries have voted to impose the death penalty on sixteen men and one woman: all but four have been black, and the combination of black-defendant and white victim exponentially increases the likelihood of aggressive prosecution. The flag’s presence at this courthouse raises unique dangers. Beyond the equal protection issues generated by the mere government display of the flag on state property, the flag’s presence at a courthouse implicates the accused’s right to due process, and both the defendants’ and the prospective jurors’ rights to all of the privileges or immunities attendant to being a citizen of a state in the Union.

Outstanding local media coverage of the crime, prosecution and punishment of kiddle porn downloaders

As regular readers know, I find the modern debates surrounding the law, policy and practice of child porn downloading offenses to be extremely interesting, important and challenging. Consequently, I am always grateful when the media gives sustained attention to these issues, which defy simple characterizations and can be too readily misunderstood by simplistic reporting. In turn, I am eager to praise both The Virginian-Pilot and the (Wilkes-Barre) Times Leader for outstanding coverage of these issues in two pairs of stories that ran this past weekend. All the stories are must-reads.

The majority of offenders are white males, of all ages, with no criminal history or previous evidence of pedophilia. Researchers and therapists say the lure of child pornography, which grips addicts as intensely as crack cocaine, targets no singular class.

Offenders' educational and occupational backgrounds vary widely: They are convenience store workers and college professors, enlisted sailors and naval officers, police officers, the homeless, and even the FBI's own.

While the number of offenses seems small compared with, say, drug and fraud cases, child pornography was the fastest-growing crime over the past six years in Virginia – up 218 percent from 2003 to 2009. Nationally, the picture is more startling: a 2,500 percent increase in arrests in 10 years, according to the FBI. U.S. Immigration and Customs Enforcement, which handles most federal child exploitation cases, has made 12,000 such arrests since the agency was formed in 2003.

U.S. Attorney Neil MacBride, whose office is handling more such cases each year, said child pornography was a dying industry until the Internet and peer-to-peer networks developed. "It went from almost dead to now a growing epidemic," he said....

As a result of these joint [federal and state investigating] efforts, more than 50 defendants were convicted in federal court here and sentenced to prison between March 2008 and August 2010, with prison terms ranging from one year to 40 years.

Some of the things they have discovered include: a father who dressed his toddler son up as a girl and filmed him in a sexual position; a sailor who searched for pictures of young boys being tied up and urinated on; and a Marine caught with 650,000 child porn images, some that can only be described as horrendous acts of bondage and bestiality....

[J]ust about every police department in the area now has detectives dedicated to stopping child exploitation. All of this has led to a surge in child pornography arrests in the past five years. But law enforcement officials realize they can't arrest everyone viewing, downloading and trading child pornography. They estimate that 50,000 computers in the state contain child porn images.

ICE agents can only get to a couple of dozen a year in Hampton Roads. "When we look at the end users, we look at those who pose a threat or those who act on it, by kidnapping a child, for example," said John Torres, special agent in charge of U.S. Immigration and Customs Enforcement for this region and Northern Virginia. "Then it's those in a position of public trust, like teachers and police officers."

Because ICE and the FBI have overlapping jurisdictions in this area, ICE tries to focus on the international offenders – those who produce and distribute child porn from far away places like Russia – while the FBI zeroes in on domestic online predators. Producers and sellers of child pornography have been arrested in California, Pennsylvania, Florida, Spain, the Netherlands and Russia....

Typically, detectives troll the Internet posing as children or acting as child porn collectors, said Sgt. Terry Wright of the Bedford County Sheriff's Department. "I would say that the past few years it has grown exponentially," he said. "Everything is getting cheaper and faster. It just proliferates the problem." A pattern he sees repeated in offenders is that they start with adult porn but get bored and turn to child porn.

The two pieces from The Times Leader — headlined "Feds, Pa. differ on kid porn: There are reasons for the wide variety in sentencing, experts say; But some still see inconsistency and unfairness" and "Real-world danger of porn offenders uncertain; Research into possible links between viewing material and molesting children still new" — do a terrific job examining and reviewing the different prosecutorial and sentencing treatment of these cases depending upon whether then are handled in federal or state court and also the unclear link between downloading child porn and committing contact sex offenses. Here is the start of the main piece (from which also comes the chart reprinted above that can be easier to read with a click on the graphic):

When officers with an Internet task force raided John Patterson’s West Pittston home in November 2008, they discovered 279 images of child pornography stored on numerous hard drives hidden throughout his residence.

Thirteen months later members of the same task force made another big bust when they raided Michael Albanesi’s home in Wyoming and recovered computer hardware with 507 images of child pornography.

The cases were strikingly similar in terms of the allegations. Both Albanesi and Patterson, neither of whom had a prior record, admitted they had been downloading and trading child porn images with others over the Internet for years. Each man faced the potential of dozens of years in prison.

So why, then, is Patterson serving 11 years in prison, while Albanesi was sentenced to just nine-to-23 months? The answer lies primarily with one key difference between the cases: Patterson was prosecuted by federal authorities, while Albanesi’s case was handled in Luzerne County Court.

The cases are but one example of the widely disparate sentences being levied in child pornography cases that have led some within the justice system –- including federal judges -– to question the fairness of federal sentencing guidelines.

In 2009 the average sentence imposed in federal court on a defendant for possessing and or disseminating child pornography was 7 years, according to the United States Sentencing Commission’s annual report.

Defendants who were prosecuted in a Pennsylvania state court faced much less severe sentences, according to statistics from the Pennsylvania Commission on Sentencing. A total of 76 defendants were sentenced in 2009. Of those, 36, or 47 percent, were sentenced to probation, while two defendants, or 3 percent, were sentenced to house arrest or some other punishment that did not involve incarceration.

Of the 38 defendants who were sentenced to prison, 21 percent received state prison sentences ranging from 33 months minimum to 98 months maximum, while 29 percent received county prison sentences ranging from a minimum of five months to a maximum of 22 months.

The Supreme Court handed down three opinions this morning, and two of them involved unanimous rulings authored by Justice Kennedy (with Justice Ginsburg concurring separately and Justice Kagan not participating) reversing grants of habeas relief by the Ninth Circuit based on the defendants' claims of ineffective assistance of counsel. The cases are Harrington v. Richter, No. 09-587 (opinion here), and Premo v. Moore, No. 09-658 (opinion here).

I will not get a chance to review these decisions closely until probably late tonight. But the unanimous outcomes and Justice Ginsburg's brief concurring opinions in both cases lead me to the (hasty?) early conclusion that these ruling reflect a desire by the Justices to give the Ninth Circuit a lesson about habeas review rather than a significant evolution in the jurisprudence of Sixth Amendment ineffectiveness claims. But perhaps others have (and will share in the comments) different perspectives on these twin rulings.

Indiana prosecutors oppose state sentencing reform proposals

As detailed in this local article, which is headlined "Prosecutors group assails proposal to cut prison sentences," discussion of sentencing reform to cut prison terms and associated costs has prompted the usual suspects to speak out in opposition. Here are excerpts from this interesting article:

A group of county prosecutors has denounced a legislative proposal backed by Gov. Mitch Daniels to shorten sentences for many drug crimes. The prosecutors' position signals what could be a provocative debate in the Statehouse over whether the proposal is a responsible way to curtail prison costs or a soft-on-crime measure that might endanger the public.

The sentence reductions are part of a larger criminal justice overhaul backed by Daniels, Chief Justice Randall Shepard and two national think tanks. But one senator involved fears the debate over cutting sentences -- and the almost-certain accusations of being soft on crime -- could torpedo the entire reform package.

That debate has been quietly raging since mid-December. That's when the board of the Association of Indiana Prosecuting Attorneys voted to oppose the state Criminal Code Evaluation Commission's recommendations to shorten sentences for drug crimes such as possession and dealing of cocaine and methamphetamine.

"There are all kinds of proposals on the table that reduce and reassign sentencing levels," said the board's 2010 president, Shelby County Prosecutor Kent Apsley. "Some of them in my view are pretty extreme changes in the law and probably go too far. The question is: Where is the breaking point where you're saving money to the point that it may seriously impact public safety?"...

The prosecutors board's vote has no formal impact on the proposed legislation. Still, over the past several weeks, commission members have been trying to hash out a compromise with prosecutors. The sentence reductions are especially important because they create the savings that would pay for other reforms in the proposal....

The proposed reform package drafted by the Criminal Code Evaluation Commission would require offenders convicted of most felonies to spend the final six months to three years of their sentences outside prison in community monitoring programs...

The state also would reduce sentences for many drug crimes, downgrading possession of small amounts of cocaine or methamphetamine to a D felony from a C, and downgrading small-scale dealing of those drugs to a C felony from a B. (A D felony can result in a sentence of six months to three years, a C felony of two to eight years and a B felony of six to 20 years.)

The sentence reductions are the main sticking point for prosecutors, who are willing to accept many of the other proposed reforms, said Steve Johnson, director of the Indiana Prosecuting Attorneys Council, who served on the Criminal Code Evaluation Commission, along with the chief justice and the attorney general.... Lawmakers on the commission said conceding to prosecutors' demands could cause the whole plan to fall apart, because the proposal envisions using the money saved by reducing prison terms to strengthen community monitoring. Changes would include expanding drug abuse treatment services and concentrating more resources on monitoring higher-risk offenders.

Ohio Justice and US Senator from Illinois urging end to state use of death penalty

As detailed in new local stories, a sitting Justice of the Ohio Supreme Court and a notable US Senator from the state of Illinois are taking about shutting down the death penalty in states. The opening paragraphs from each piece provide the basics; consider the start of the Illinois story here appealing in the Chicago Tribune:

States should not impose the death penalty because of the difficulty in administering it fairly, although the federal government should retain that authority in cases involving terrorism or treason that endanger many lives, U.S. Sen. Dick Durbin said.

Durbin told The (Springfield) State Journal-Register that he had always supported the death penalty, but has come to believe that "life in prison is penalty enough." He said that view was influenced partly by those of the late U.S. Supreme Court Justice Harry Blackmun and retired Justice John Paul Stevens.

An Ohio Supreme Court justice who helped write the state's death penalty law three decades ago and has more recently questioned its interpretation called Tuesday for an end to capital punishment in the state. Justice Paul Pfeifer also said Gov. John Kasich and any future governor should consider commuting the sentences of Ohio's death row inmates to life without parole.

"These are important matters that need all of our thoughtful attention — need the attention of the Legislature to consider seriously whether we're well-served by this statute any longer," he said in remarks following his swearing-in ceremony. "The time has come for us to make that change," Pfeifer said.

Pfeifer, a moderate Republican, was chairman of the Senate Judiciary Committee as Ohio debated the capital punishment bill that became law in 1981.

January 18, 2011

"The Moral Urgency of Crack Retroactivity"

The title of this post is the headline of this commentary by Julie Stewart, the president of Families Against Mandatory Minimums, which ran yesterday at The Huffington Post. Here is how it begins:

On August 3, 2010, the nation's first African-American president signed into law a bill to reform what many considered the most racially discriminatory sentencing policy in federal law. The old policy required dramatically more severe penalties for crimes involving crack cocaine than for offenses involving powder cocaine. The president and Congress deserve credit for working together to lower crack penalties. Yet, in a cruel irony, they failed to provide any relief to the very prisoners whose unnecessarily harsh sentences they had pointed to as the impetus for reform. As our nation celebrates the life and legacy of Martin Luther King, Jr., we implore the president and new Congress to listen to their consciences, do what is right, and apply the reformed crack penalties retroactively to all offenders.

Kansas considering getting tougher on repeat drunk drivers

This new piece from the Kansas City Star, which is headlined "Kansas considers sending repeat drunken drivers to prison," showcases my concern with state laws that are unduly lenient on drunk driving and also the appeal of technocorrections in this arena. Here are excerpts:

Some Kansas lawmakers want to send repeat DUI offenders to prison, but that won’t be easy with the state’s budget problems and prisons that already are overcrowded.

Under newly proposed legislation, a fourth drunken driving conviction would mean prison time. Currently a year in county jail — not state prison — is the longest sentence regardless of whether an offender has four convictions or 40....

Not everyone thinks the state can afford the changes. Men’s prisons are already overcrowded, and Kansas struggles to fund education and basic services. Under the bill, a fourth DUI would carry a prison sentence of as much as 17 months. That would increase to as much as 34 months for a 10th conviction....

Among other changes Kansas legislators are considering [includes] first offenders [having] to get ignition interlock devices on their vehicles — and pay for it....

Frank Harris, state legislative affairs manager for Mothers Against Drunk Driving, said requiring interlocks for even first-time drunken drivers is probably the most important change and would cost the state nothing. It also would be part of a spreading approach, he said. In 2005, only New Mexico did that and now 13 states do, he said. Such legislation failed last year in Missouri.

Meanwhile, statistics continue to tell a story. In 2009, four in 10 fatality traffic accidents in Kansas involved drunken driving, as did more than three in 10 in Missouri. Harris noted that Kansas was one of the few states that year that saw an increase in drunken driving fatalities — up to 154 from 138 the year before.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

ACLU spotlights another severe crack sentence in its commutation project

As detailed in this new press release, which is titled "ACLU Files Commutation Petition On Behalf Of Man Serving Unjust Prison Sentence For Non-Violent Crime," the ACLU has another "poster-child" case in its “Dear Mr. President, Yes You Can” project "which brings together civil rights advocates, legal scholars, law school clinics, pro bono counsel and others to urge President Obama to use his pardon and commutation power in a principled way, consistent with his administration’s position that the crack sentencing guidelines have been far too harsh." Here are some excerpts from the ACLU press release:

The American Civil Liberties Union and the Los Angeles-based law firm Caldwell Leslie and Proctor, PC today asked President Obama to commute the remaining sentence of Kenneth J. Lumpkin, a father of four serving the 15th year of an unjust 20-year prison sentence for a non-violent offense. Along with a commutation petition, the ACLU today filed with the U.S. Department of Justice’s Office of the Pardon Attorney over 30 letters in support of commutation for Lumpkin, including several from staff members at the Taft Correctional Institution in California, the minimum security facility where Lumpkin is currently incarcerated....

Lumpkin is one of thousands of people in this country, a disproportionate number of whom are people of color, who have been given extremely long sentences under the sentencing disparity between crack and powder cocaine. The Fair Sentencing Act passed by Congress last year reduced the disparity from 100-to-1 to 18-to-1 but did not fully eliminate it.

Had Lumpkin’s offense involved powder instead of crack cocaine — the same quantity of the same drug in a different form – his mandatory minimum sentence would have been 10 years instead of 20, he would have already served his entire sentence, he would have been there to watch his children graduate from high school and the birth of his first grandchild and he would have been able to help care for his mother, who is recuperating from a stroke she suffered several years ago....

Though Lumpkin’s excessive punishment as a result of the crack-powder sentencing disparity is not unique, his conduct while incarcerated has demonstrated a level of rehabilitation that officials at his correctional institution consider extraordinary. After being transferred several years ago from a medium security prison to a fenceless minimum security camp several years ago, Lumpkin has taken virtually all of the college courses available to him, teaches two art classes a week to fellow prisoners and leads them in a community mural painting project, is active in his Native American religious group, and is executive chairman of a group called Those Outspoken Against Drugs (TOAD), a select group of prisoners who speak to teenagers at local schools and juvenile halls about taking responsibility for one’s own actions, making good choices and the dangers of drugs.

Lumpkin’s conduct at the camp has earned the respect and sincere admiration of not only fellow inmates — both long-timers and those recently incarcerated — but also of members of the prison staff, including the Associate Warden, who have all written to declare their support for Mr. Lumpkin’s early release.

Should there be an age at which judges are no longer allowed to sentence defendants?

The provocative question in this title of this post is inspired by this provocative and effective articleby Joseph Goldstein at Slate headlined "The Oldest Bench Ever: Extreme aging in the federal judiciary — and the trouble it causes." The piece begins with a story of an 84-year-old federal judge appearing very confused when imposing a life sentence on a drug defendant, and it includes these statistics and stories:

Life tenure, intended to foster judicial independence, has been a unique feature of the federal bench since the Constitution was ratified in 1789. Back then, the average American lived to be about 40 and the framers didn't express much worry about senile judges. "A superannuated bench," Alexander Hamilton said, is an "imaginary danger."

No longer. Today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age. About 12 percent of the nation's 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago. (One judge, a Kansan appointed by President John F. Kennedy, is over 100.) The share of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years. The demographics of the federal bench have no analogue on the state courts, where judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages, often in their 60s or 70s....

For many older judges, no doubt, experience is a virtue. "My memory is not as acute as it was, [but] principles, I know, and my judgment is the same — it may be better," said U.S. District Judge Jack Weinstein, a Brooklyn legend at 89 and one of the nation's most respected legal minds.

But judges of advanced years are clearly at increased risk for trouble with memory and cognition. According to the Alzheimer's Association, about 13 percent of Americans over 65 have Alzheimer's and nearly half of those 85 and older develop it or suffer from dementia....

Frank Easterbrook, chief of the Chicago-based 7th Circuit U.S. Court of Appeals ... has [in the last four years] arranged for two colleagues to see neurologists. One was diagnosed with Alzheimer's and retired. The other insisted on returning to the bench after a stroke, but because he had difficulties "with executive function," Easterbrook said, he removed all criminal cases from the judge's docket. Easterbrook has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia — a rare move by the bench to enlist the public in monitoring judges.

Why do judges outstay their welcome? Longer life spans and attachment to the job play a role. Another factor, judges and experts say, is that in some ways the job has gotten easier. Until the 1930s, district and circuit court judges functioned without law clerks. Now even district court judges get two apiece, and they can pick up the slack as a judge's output diminishes. A 2005 study offers a sense of just how long judges are holding on: More than nine out of 10 district court judges die within a year of retiring fully....

And for nearly a century, Congress has invited judges to work less, starting at age 65, instead of retiring. A judge who goes on senior status, as the arrangement is called, still draws a salary and works as much or as little as he or she likes; meanwhile, the president can nominate a new judge to the take the spot the senior-status judge has vacated, at least on paper. It's a system meant to encourage elderly judges to make room for younger ones, without giving anybody the boot....

Judges facing age-related mental decline are prone to make rookie mistakes that harm the rights of the people before them. Judge John Shabaz of the federal court in Madison, Wisc., had a reputation as a strict sentencer who resolved cases at a brisk pace. But when he reached his mid-70s, attorneys began to suspect his mind was deteriorating. "He had trouble reading things out loud, such as plea agreements," lawyer David Mandell says. "He would start and stop and start over."

In August 2006, before announcing a 20-year sentence, Shabaz forgot to offer a convicted drug dealer the chance to ask for mercy, a right spelled out in the Federal Rules of Criminal Procedure. The judge reversed the process, first announcing the sentence and then offering the man a chance to speak. The U.S. Court of Appeals for the 7th Circuit called this "the kind of error that undermines the fairness of the judicial process" and sent the case back to a different judge for a do-over. A story about Shabaz appeared in the Capital Times, a Madison newspaper, under the headline "Confusion in the Court." Easterbrook ... sent intermediaries to persuade Shabaz not to return from a medical leave for shoulder surgery in 2008. For a while Shabaz resisted, but eventually he acquiesced, a colleague said. He assumed senior status in January 2009 and no longer hears cases.

"Indiana's Answer to Prison Costs"

For states that are serious about trimming deficits, out-of-control prison costs are a good place to start cutting. The expenses of housing and caring for more than one million state prison inmates has quadrupled in the last decade from about $12 billion a year to more $52 billion a year. This, in turn, has squeezed budgets for essential programs like education.

Governors seeking wisdom on how to proceed could start by looking at what Gov. Mitch Daniels, a Republican, is trying to accomplish in Indiana.

The centerpiece of Mr. Daniels’s approach is a set of reforms governing sentencing and parole. Judges would be allowed to fit sentences to crimes and have the flexibility to impose shorter sentences for nonviolent offenses. A poorly structured parole system would be reorganized to focus on offenders who actually present a risk to public safety.

Addicts would be given drug treatment to try to make them less likely to be rearrested. And there would be incentives for towns to handle low-level offenders instead of sending them into more costly state prisons.

January 17, 2011

The Wall Street Journal has this notable new piece , headlined "Fed prosecutors in NY get child porn restitution," reporting on some recent developments in the long-running saga concerning the awarding of restitution in child porn sentencings. Here are excerpts:

Federal prosecutors intent on stemming child pornography and helping care for its victims are increasingly going after the assets of offenders under an evolving change in Justice Department policy.

In one of the most recent cases, a former provost marshal at the U.S. Army's sprawling Fort Drum in northern New York was sentenced to almost six years in prison for possessing and sharing child pornography and will soon pay $10,000 each to two victims identified from among more than 700 images of children he had. The payments are meant to deter sharing images of exploited children and to help pay for their later psychiatric or other treatment, authorities said.

Federal prosecutors said there are thousands of cases nationally, the crime proliferating with the Internet. There are 163 open matters now in the Northern District of New York, ranging from criminal appeals to initial investigations that may become cases....

Assistant U.S. Attorney Lisa Fletcher prosecutes child porn cases almost exclusively, with another assistant at the Syracuse office assigned to help with the backlog. Federal prosecutors in three other offices are likewise busy, with ongoing federal investigations and referrals from county district attorneys. "We're getting more and more people with hands-on offenses and more and more people trying to meet underage kids," Fletcher said.

According to the Justice Department, its project against exploitation of minors has increased prosecutions 40 percent since 2006, with 2,315 indictments filed against 2,427 defendants in 2009 and almost 9,000 charged altogether over four years. More than 3,000 victims of child pornography crimes were identified, with many rescued....

While some offenders have challenged restitution, which began almost two years ago, and courts are still sorting out how to handle it, Butler agreed to pay $10,000 to each identified victim, Fletcher said. One, now 19, was rescued from an abuser at age 11. "Her picture is all over the Internet," the prosecutor said.

Defense attorney Thomas Cerio said Tuesday the payments are being processed. He said that Butler, married with children, expressed remorse at sentencing, for the victims and for letting his family and the country down. Butler also lost his pension. He wasn't producing pornography, Cerio said....

In other cases around the country, judges have approved victim payments ranging from $1,000 to $200,000. Prosecutors in North Dakota decided in September to appeal U.S. District Judge Ralph Erickson's rejection of nearly $3.7 million in restitution to two victims by Robert Scheiring. He was sentenced to 14 years in prison on charges of distribution and possession of child pornography. Authorities said they found more than 600,000 pictures and 2,400 videos.

"The main issue is taking a young child who is abused or photographed or videotaped. The videotape is passed around the Internet. How do you calculate the damage to that young child as the image is viewed?" [Assistant U.S. Attorney William] Pericak said. "Suppose it's viewed by 100 or 1,000 or 150,000 people. Is there extra damage from each viewing?"

Prosecutors and victim advocates say that there clearly is harm done. The children grow up and wonder if the people they meet have seen the images. Some will end up with hundreds of thousands of dollars in psychiatric, psychological or other treatment bills from the trauma of abuse.

Is there less discussion of race and criminal justice since Obama's election?

Long-time readers may recall that I generally make a habit of honoring Dr. Martin Luther King's Day by encouraging everyone to reflect on the historic and modern intersection of racial issues and criminal justice realities. I do so again today first by providing links to some prior MLK Day posts and other related posts on this issue here:

Yet, as the question in the title to this post highlights, I am today wondering if the election of the first non-white President in the United States has, ironically, served to diminish the amount of vocal public discussion of the intersection of race and the modern administration of criminal justice systems.

It is my impression that there are fewer reports coming from public policy groups and others interested in criminal justice reforms that are focused on racial issues and racial disparities. I have no hard data to back up this impression, and many groups continue to note racial disparities in prison populations and in the application of the death penalty. Nevertheless, it still seems the spotlight in not on race quite as much as it has been in the past. (Relatedly, I am troubled that few groups are actively assailing the racial impact of the Justice Department's effort to keep the old crack laws applicable for as long as possible.) Could it be that despite (or even because of) new diversity in the Oval Office and at the head of DOJ, we are actually less eager and less able to talk about race and criminal justice in recent years?

Can you believe prisons now have tanning beds ... in Russia?!?!?!

There is this amusing new prison story, headlined "Notorious Russian prison to get tanning beds," coming from the AP out of Moscow. Here are the details:

A centuries-old Russian prison notorious for its primitive conditions will soon offer inmates a new perk — tanning beds....

[Viktor] was quoted as saying the tanning beds are meant to compensate for inadequate sunlight in the cells. But inmates will have to pay and at 10 rubles (33 cents) a minute, that's a sizable fee in a country where the average monthly salary is well under $1,000.

The prison's dismal conditions attracted wide attention in 2009 after the death of Sergei Magnitsky, a young lawyer who died of pancreas disease there after inadequate medical care.

"Illinois death penalty decision leaves uncertainty"

The title of this post is the headline of this effective piece from the Chicago Tribune article providing the latest update concerning the limbo state of the death penalty in Illinois. Here is how the piece starts:

Ten years after Illinois halted executions, the uncertainty over Gov. Pat Quinn's pending decision on whether to end capital punishment for good raises a number of questions about the state's current death penalty cases and the 15 men on death row.

A bill recently passed by the state House and Senate would abolish the death penalty as of July 1, but there are no guarantees the governor will sign it. Quinn supports the death penalty but has also kept in place the moratorium on capital punishment instituted by a predecessor, former Gov. George Ryan, after the death sentences of 13 men were overturned and Ryan concluded the state's death penalty system wasn't working.

Quinn's decision could come any time after the law is certified by the General Assembly, and he's being lobbied hard by death penalty opponents, prosecutors and victim's rights groups. The situation has created a period of uncertainty for prosecutors and defense attorneys with pending death penalty cases, as well as those on death row.

January 16, 2011

Notable new paper on the prosecution and sentencing of children for prostitution

Tamar Birckhead has this notable new paper, titled "The 'Youngest Profession': Consent, Autonomy, and Prostituted Children," posted on SSRN. Here is the abstract:

Although reliable estimates do not exist, the data suggests that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200000 and 300000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate. In 2008 -- the most recent year for which data is available -- approximately 206 males and 643 females under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution and commercialized sex. Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status. Research also reveals that because most states have laws that hold children criminally liable for 'selling' sex, law enforcement and the courts readily pathologize these youth, a significant percentage of whom are runaways, drug addicted or from low-income homes in which they were neglected and abused. Statistics additionally suggest that the number of American girls who are sexually exploited is increasing, particularly for those between the ages of thirteen and seventeen. Likewise, it is estimated that eighty percent of prostituted women began this activity when they, themselves, were younger than eighteen. Yet, nearly all states can criminally prosecute children for prostitution even when they are too young to legally consent to sex with adults, and very few communities have developed effective programs designed to prevent or intervene in the sexual exploitation of youth.

This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution. It argues that rather than maintain a legal scheme that characterizes and treats such juveniles as willing participants who, if harmed, are merely getting what they deserve, a more nuanced approach must be developed in which -- at a minimum -- criminal liability should be consistent with age of consent and statutory rape laws. It analyzes the range of ways in which states have addressed the problem of prostituted children, and it highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than prosecution and incarceration. It contrasts the impact of state versus federal legislation as well as domestic versus international policy in this area and the ways in which these differences serve to perpetuate pernicious stereotypes vis-à-vis youth and crime. The Article addresses the historical treatment of prostituted children as criminals rather than victims by both American law and society, and critiques contemporary rationales for continuing a punitive approach toward these youth. The Article explores the conflicting statutory, common law, and colloquial meanings of the terms 'prostitution,' 'consent,' and 'bodily autonomy' as they relate to children and sexuality. It also considers the extent to which the criminal offenses of prostitution and statutory rape address different sets of harms and explores how gender and sexual orientation are implicated in the discussion. The Article concludes by highlighting model programs directed at prevention, intervention, and rehabilitation as well as proposing strategies for reform, such as decriminalization and diversion.

Is there growing momentum behind death penalty repeal efforts?

The question in the title of this post is motivated in part by the fact that Illinois is just a signature by its Governor away from becoming the 17th state in the US without the death penalty. But it is also inspired by these recent major articles discussing death penalty repeal efforts afoot in other states:

From the Wall Street Journalhere, "Death penalty foes hopeful with new Connecticut governor."

From the Washington Posthere, "Maryland again looking at death penalty."

Of course, modern death penalty reform discussions are not only a one-way ratchet toward abolition. As this local article explains, "New Mexico death penalty supporters plan to try to bring back capital punishment in the legislative session that starts next week. They've been working on 'repealing the repeal' ever since the state did away with it two years ago, and now they are ready to put it on the agenda for the 60 day session."

Real-life drama in China over crime and punishment of toll dodgers

As effectively explained in this BBC article, many fascinating aspects of China's criminal justice system is brought to light in an amazing and still developing story of massive toll evasion. Here are the details:

The younger brother of a Chinese man sentenced to life in prison for dodging road tolls has turned himself into police, state media reports. Shi Junfeng said he -- and not his elder brother - had put military number plates on the vehicles to evade tolls of 3.7m yuan (£350,000;$560,000).

The case caused an outcry in China, with many questioning the harsh sentence given to Shi Jianfeng. The court in Henan province had already ordered a retrial.

Shi Jianfeng had been found guilty last week of evading the fees over a nine-month period while delivering sand and gravel in two trucks. The court ruled he had used military number plates, meaning the vehicles could avoid paying road tolls. He was sentenced to life in prison, a fine of 2m yuan and the loss of his political rights. He also had his illegal earnings confiscated.

But last Friday, the court in Pingdingshan ordered a retrial of the case, ruling that other people may have been involved. Court official Liu Penghua said the convicted man had claimed he was "manipulated by a relative," the Xinhua news agency reported.

On Saturday night, Shi Junfeng turned himself in to police in Yuzhou City, saying his brother, a farmer, had taken the blame for him. It appears he had not thought his older brother would be sentenced so severely, telling police he had offered bribes to officials and had been assured he would be released quickly....

The case had generated a furious reaction online in China. Many argued that far more lenient sentences are usually given for more serious crimes. There were also complaints that road tolls, required on most major highways, are too high for ordinary people to be able to afford.

I find the notion that a Chinese driver could rack up over a half-million dollars in tolls over a nine-month period to be perhaps the most stunning part of this whole story. I often think tolls going from New Jersey into Manhattan are crazy high, but even the most expensive route is not more than $25 round trip. One would have to make that costly trip more than fifty times every day to have a toll bill anywhere comparable to what these Chinese brothers racked up.